Discovering Rav Elyashiv

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discoveringSince his recent petirah, much has been said and written about Rabbi Yosef Shalom Elyashiv, zt”l, one of the greatest posekim of the post-World War II era. Nevertheless, despite his very public profile—as awe-inspiring as it is—Rav Elyashiv was a very private person. Although Rav Elyashiv was surrounded by many people—even great talmidei chachamim—they convey to us much more of what he said in extemporaneous conversation, and much less of his thought process. Rav Elyashiv thus remains very much a “closed book.” This is notwithstanding the volumes of Rav Elyashiv’s writings that have been published, as he did not write in a systematic manner. Moreover, even the teshuvot that have been published are only available as edited by his talmidim, who have cut sections out and inserted many ellipses in the remaining sections, dimming whatever light they might have shed on Rav Elyashiv’s derech. Outlined below is just one of the numerous pathways that together comprise his derech—Rav Elyashiv’s approach to issues of public policy, both historical and contemporary, as reflected in his responsa.

Uniting with the Six Million
In 1985, the Kaliver Rebbe suggested a takkanah to recite the pesukim of Shema Yisrael following Aleinu every morning (Kovetz Teshuvot vol. 1, teshuvah 18).

The intent of the takkanah was to unite one who is praying with the memory of the six million kedoshim of the Shoah.

Rav Elyashiv begins his response by acknowledging that the Rebbe himself is a survivor of the Shoah, and that obviously the memory of that horrific time is always with him. Despite the fact that he did not personally experience the Holocaust and cannot share those terrible memories, Rav Elyashiv states that since the Rebbe asked for his opinion, he would give it.

Shortly after the Shoah, a proposal was made to institute a permanent fast day to remember that tragic period. At the time, recalls Rav Elyashiv, the Chazon Ish objected to the proposal, explaining that our generation is one that is not worthy of introducing permanent enactments.1 This earlier repudiation of a similar proposal in and of itself, writes Rav Elyashiv, may suffice to negate the Rebbe’s proposal. But, adds Rav Elyashiv, there is another reason for rejecting this proposal. The Kaliver Rebbe’s expressed intent that this practice serve as a time of contemplation “l’hisyached im hakedoshim, to unite with the martyrs,” is not a concept that we find in our classic sources, in Chazal.

Rav Elyashiv here manifests an approach that is not unique, yet is noteworthy as a hallmark of the Lithuanian approach to Jewish practice: sentiment is not an adequate basis for public policy, even if the policy does not clash with any specific halachic parameters. Even though there may be no inherent halachic objection to an individual repeating Shema after davening, its repetition as a formal ritual is objectionable in and of itself, so long as it is not grounded in a known form of avodat Hashem as sanctioned by Chazal.2

Memorializing One’s Parents
In a similar teshuvah (vol. 1, teshuvah 130), Rav Elyashiv responds to an individual who wanted to purchase unused land in a cemetery and erect a monument to memorialize his parents who had perished in the Shoah.

Rav Elyashiv begins his response by considering the issues that may be involved in this case. We know that we are forbidden to emulate inherently non-Jewish rituals.3 The Rema (Shulchan Aruch, YD 178) defines inherently non-Jewish rituals as either ceremonies that manifest lewdness (pritzut) or ceremonies that are celebrated for no apparent reason and are thereby assumed to be rooted in heathen worship or superstition (darchei Emori). On the other hand, writes the Rema, non-Jewish rituals that are based on obvious and positive motivations may be adopted. Therefore, it would seem that the erection of such a monument—while admittedly a form of commemoration of non-Jewish origin—should be permissible, as it is grounded in the individual’s quest to honor his parents.

However, continues Rav Elyashiv, the Gra (on Shulchan Aruch, ibid.) stringently rules that we are even forbidden to adopt non-Jewish rituals that are based on obvious and positive motivations, which would seem to rule out the erection of a monument. Yet, Rav Elyashiv writes, it is not certain that the practice of erecting commemorative monuments is, indeed, of non-Jewish origin. After all, we know that Avshalom, who had no heirs, erected the commemorative monument known as Yad Avshalom already during his lifetime. And the Gra would allow us to adopt rituals common among non-Jews if they can be traced to our own practices as recorded in Tanach.

On the other hand, writes Rav Elyashiv, we must also consider the use of cemetery land for this purpose. The land of a cemetery is accorded similar status as that of a synagogue in a location frequented by the public; thus, such land can only be used for its stated purpose which, in this case, would seem to be burial of the dead, not the erection of monuments. However, after citing and analyzing several sources, Rav Elyashiv concludes that there is sufficient halachic grounds to permit the usage of cemetery land in this manner.

But, concludes Rav Elyashiv, even though din Torah (the letter of the law) allows for the erection of such a monument, from the perspective of da’at Torah (the spirit of the law), this is not a laudable venture (“Ein ruach chachamim nochah heimenu”).4 Rather, the questioner should consider one of the time-honored traditions of commemorating the departed, such as donating something (e.g., a light fixture, et cetera) to a shul (to which one could, of course, affix a plaque), which would bring about merit for the deceased and commemorate him at the same time.

Here Rav Elyashiv again manifests an approach that is not unique, yet is noteworthy and enhances our understanding of his teshuvah to the Kaliver Rebbe: halachah is the letter of the law, but the knowledge and observance of halachah instill in us a “sensitivity” to its spirit.5 More precisely, perhaps, halachah consists of both rulings (din) and opinions (da’at). In both these teshuvot, Rav Elyashiv is clarifying that even if something may be permitted according to a narrow ruling of the law, it may still remain out of sync with the value system of the halachically minded. And, in cases where the questioner is motivated by emotion, the spirit of the law should definitely prevail.

Exaggerating Stories about Gedolim
As teshuvah 28 (vol. 3) “starts” with paragraph 3, it is clearly missing sections. But the published part of the teshuvah is fascinating. The question under discussion is the propriety of exaggerating stories about gedolim. Rav Elyashiv writes that it is inappropriate to do so. He cites the Taz in Yoreh Deah (344:1) where the Shulchan Aruch (YD 344:1) states that when eulogizing someone, we mention the good traits of the departed and “add a bit” (mosifin ketzat). Concerning this ruling, the Taz asks, “What difference does it make if a lie is a big lie or small lie—a lie is a lie!” The Taz explains that based on one’s knowledge of the deceased, he may add what he reasonably assumes the deceased would have done had he been in a particular situation.

The teshuvah ends somewhat abruptly, without defining what it means to “add a bit.” Nevertheless, on the basis of further comments of the Taz and those of the Aruch HaShulchan (YD 344:6), we may suggest a definition, using the case of a deceased’s fulfillment of the mitzvah of tefillah b’tzibbur. For example, a person delivering a eulogy may recall noticing that whenever he spent time with the deceased, the deceased was very careful to daven with a minyan. Yet he may have only spent a limited amount of time with the deceased. For all he knows, perhaps at other times, when he was not present, the deceased was not particular about davening b’tzibbur! Can he nevertheless praise the deceased for his diligence in this regard? It is the principle of mosifin ketzat that permits one delivering the eulogy to extrapolate from his experience with the deceased and praise him as one who was meticulous with regard to tefillah b’tzibbur.

Following this line of reasoning, Rav Elyashiv’s ruling might apply to a case in which we know that in many instances a gadol demonstrated particular empathy towards those who came to him with personal problems. In such a case, we would be allowed to assume that this was a fundamental character trait of the gadol, not just occasional behavior.

No Justification for Reprinting
Rabbi Boruch Horovitz, rosh hayeshivah of Yeshivas Dvar Yerushalayim, published Matteh Levi, the responsa of his grandfather, Rabbi Marcus Horovitz, who was the Orthodox rabbi of the Grossgemeinde, “Larger Community” (the general community which included both Orthodox and Reform constituencies in Frankfurt am Main, although the Reform dominated).6 In one of the teshuvot, Rabbi Horovitz discusses the renowned incident of the “Cleves Get” and argues in favor of the position of the Frankfurt beit din nullifying the get—a ruling that was opposed by virtually every other halachic authority of eighteenth-century world Jewry.7

Rav Elyashiv  (vol. 3, teshuvah 29) begins by stating the facts of the case, and postulating that were the controversy to have arisen at a time in which a Sanhedrin existed, the Frankfurt beit din would have been in violation of the Torah prohibition of  “Lo sasur, Do not deviate” (Devarim 17:11).8 Moreover, writes Rav Elyashiv, even in later generations there still exists the concept of “The Lord stands with the community of God” (Elokim nitzav b’adat Keil), and the majority of chachmei Yisrael cannot be mistaken.

Rav Elyashiv is clarifying that even if something may be permitted according to a narrow ruling of the law, it may still remain out of sync with the value system of the halachically minded.

Rav Elyashiv continues that, be that as it may, he could not understand why Rabbi Horovitz reprinted all the pronouncements and bans issued by the Frankfurt beit din, which were derisive and degrading of great rabbanim of the time. Granted, at the time of the controversy, when tempers were flaring, excessive zeal may have led the Frankfurt beit din to act inappropriately, but what justification is there to bring these matters up now? There is no doubt that so many years after the controversy died down, when all the combatants have already been long in the Olam Haemet, that they can have no pleasure from reopening the issue. And, concludes Rav Elyashiv, even if Rabbi Horovitz’s grandfather’s teshuvah and its publication can somehow be justified as a halachic excursus, how can the author justify the publication of the scandalous material surrounding the episode? Such publication surely clashes with kavod haTorah.

Taken together with the two preceding teshuvot, Rav Elyashiv clarifies that not only the forms of our commemorations, but also the actual recollections of individuals and events must be subject to the scrutiny of Torah.

Reporting a Molester
In 2004, the American posek Rabbi Feivel Cohen posed the unfortunately contemporary question of whether it is permissible to inform the authorities of the activities of a child molester (vol. 3, teshuvah 231).

relyashivRav Elyashiv bases his response on Teshuvot HaRashba (3:393), which states that when there are clear witnesses that someone has committed crimes, beit din is allowed—even in our day and age—to impose upon him monetary fines and corporal punishment. The Rashba asserts that this is part of our responsibility of kiyum haolam, sustaining the world. For were we to limit our punishments to the precise parameters that we find in Torah, our code of law would not suffice to maintain society. It is therefore appropriate for beit din to enact appropriate laws in addition to the laws of the Torah, so long as the government of that particular time and place gives us the authority to do so.

Rav Elyashiv adds that even if the government does not grant us such authority, it remains incumbent upon beit din to ensure tikkun haolam. Therefore, even if the community cannot impose penalties, the tikkun haolam of curtailing molestation is sufficient reason to inform the authorities of the perpetrator (so long, qualifies Rav Elyashiv, as the charge is borne out by evidence).9

All of these teshuvot I have selected relate to public policy extending beyond normative halachic issues and practices. These are not “berachah-on-corn-flakes” she’eilot. Decisions in these areas require a gadol baTorah’s scope of vision and depth of sensitivity. In the course of our reviewing Rav Elyashiv’s rulings on such issues, perhaps we have gotten a little bit beyond the opacity in which he was often hidden. May Rav Elyashiv’s merit sustain us, and may his Torah—together with the Torah of all gedolei Yisrael—guide us along the path of avodat Hashem toward the ultimate tikkun olam b’malchut Shakkai.

Rabbi Yosef Gavriel Bechhofer is a maggid shiur at the Marsha Stern Talmudical Academy-Yeshiva University High School for Boys, a frequent contributor to these pages and a renowned writer and speaker.

Notes:
1. It is interesting to note that Rabbi Yosef Dov Halevi Soloveitchik opposed not only enacting special commemorative days, but even commemorative kinot. He maintained that only the Rishonim had the capacity to author prayers, and that no subsequent kinot could be added to the Tishah B’Av liturgy (Heard by author, Rabbi Soloveitchik lecture, Tishah B’Av 1980).

2. Rav Elyashiv suggests learning mishnayot instead for the sake of the martyrs. Learning is always good, no matter what its specific catalyst may be.

3. Based on the Torah’s admonition “B’chukoteihem lo teileichu, Do not follow their traditions” (Vayikra 18:3).

4. Literally, the spirit of the sages is not pleased by it—i.e., the erection of such a monument violates the spirit of the law.

In the context of a discussion of the disinheriting of halachic heirs, Rabbi Chaim Jachter (Gray Matter, vol. 3, p. 295) writes:

“It should be noted that the term ‘Ein ruach chachamim nochah heimenu’ is not mild rebuke. The Rashbam (commenting on Bava Batra 133b, s.v. “ein”) explains this phrase to mean that Chazal are profoundly disturbed by someone disinheriting their halachic heirs. The Rashbam’s comments are cited by the Sema (CM 282:2), one of the premier commentaries to the Choshen Mishpat section of the Shulchan Aruch.”

5. This usage of the term da’at Torah is unrelated to its more controversial use as an assertion of the binding authority of opinions expressed by Torah sages. It is used by Rav Elyashiv, rather, to indicate broader sensitivities that complement narrow halachic rulings.

6. Rabbi Samson Raphael Hirsch was famous for asserting that it was forbidden to be a member of the Grossgemeinde, and for founding the secessionist Austrittsgemeinde, “Leaving Community.” However, even after Rabbi Hirsch formed the Austrittsgemeinde and developed it into a thriving entity, the majority of Orthodox Jews in Frankfurt remained affiliated with the Grossgemeinde, in many cases holding dual membership in the two organizations. Rabbi Horovitz was the Orthodox rabbi of the Grossgemeinde from 1882 until his death in 1910.

7. The incident of the Cleves get is extraordinarily fascinating and extraordinarily complicated. Here is the brief synopsis provided at www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0004_0_04354.html:

During 1766 to 1767, a great controversy flared up, which was to become known as the Cleves get (bill of divorce), one of the causes célèbres of the 18th century . . . On Elul 8, 5526 (August 14, 1766), Isaac (Itzik), son of Eliezer Neiberg of Mannheim, married Leah, daughter of Jacob Guenzhausen of Bonn. On the Sabbath following the wedding the bridegroom took ninety-four gold crowns of the dowry and disappeared. After an extensive search he was found . . . in the house of a non-Jew in the village of Farenheim and brought home. A few days later Isaac informed his wife’s family that he could no longer stay in Germany because of the grave danger which threatened him there, and that he was obliged to immigrate to England. He declared his willingness to give his wife a divorce in order to prevent her from becoming an agunah. His offer was accepted, and Cleves on the German-Dutch border was selected as the place for the get to be given. Consequently, on the 22nd of Elul, Israel b. Eliezer Lipschuetz, the av bet din of Cleves, effected the divorce. Leah returned to Mannheim and Isaac proceeded to England. When his father learned of the divorce, he suspected that the whole affair had been contrived by the woman’s relatives to extort the dowry money from Isaac. He turned to R. Tevele Hess of Mannheim who invalidated the get on the grounds that in his view the husband was not of sound mind when he delivered it. Hess, not relying upon his own judgment, applied to the bet din of Frankfurt and to Naphtali Hirsch Katzenellenbogen of Pfalz, Eliezer Katzenellenbogen of Hagenau, and Joseph Steinhardt of Fuerth, requesting their confirmation of his ruling. The bet din of Frankfurt, headed by Abraham b. Zevi Hirsch of Lissau, not only agreed, but demanded that Lipschuetz himself declare the get invalid and proclaim Leah to be still a married woman . . . Both sides appealed to all the rabbinical authorities of the time. The rabbi of Cleves received the support of almost all of the leading scholars of the generation, among them Saul b. Aryeh Leib Loewenstamm of Amsterdam, Jacob Emden, Ezekiel Landau of Prague, Isaac Horowitz of Hamburg, David of Dessau, Aryeh of Metz, Elhanan of Danzig, Solomon b. Moses of Chelm, and ten scholars of the klaus (bet-midrash) of Brody. The bet din of Frankfurt was virtually alone in its opposition. The moving spirit in the dispute was the Frankfurt dayyan, Nathan b. Solomon Maas, on whose initiative the Frankfurt rabbis even went so far as publicly and with solemn ceremony to commit to flames the responsa of the Polish rabbis in protest against their intervention in favor of Lipschuetz. The couple finally remarried and out of deference to the opinion of Rabbi Abraham of Frankfurt, no blessings were pronounced at the ceremony.

8. The full verse reads, “According to the teaching that they [the Great Sanhedrin in Jerusalem] will teach you and according to the judgment that they will say to you, shall you do; you shall not deviate from the word that they will tell you, right or left.” This verse is the source of the law of zaken mamrei, the “rebellious elder.” This law makes a judge who rules in contradiction to a ruling of the Great Sanhedrin liable to the death penalty. Rav Elyashiv here suggests that this prohibition also pertains to a small number of judges who rule in contradiction to the vast majority of judges at the time when judges were vested with the authority of the long-extinct authentic semichah, ordination, that stretched in an unbroken chain from Moshe to Hillel II.

9. Rav Elyashiv indicates that the available evidence must at least meet the halachic criterion of raglayim ladavar (literally, “the matter has legs”). He does not define the criterion in this teshuvah. However, from Rav Elyashiv’s dissenting minority opinion in a 1968 case before the High Court of the Chief Rabbinate of the State of Israel (Piskei Din Rabbani’im Mishpatei Shaul, siman 19) it emerges that one definition of raglayim ladavar is the presence of abnormal phenomena consistent with an assertion. I would venture that in the case of molestation, the criterion would be met by unusual behavior patterns on the part of either the perpetrator or the victim that are consistent with an occurrence of molestation.

This article was featured in Jewish Action Summer 2013.

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